Rajnath alias Raajnath vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 19.2.1998 passed by Special Judge, Ambikapur in Special Case No. 140/1997 convicting the accused/appellant u/s 354 IPC & 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "special Act" and sentencing him to undergo rigorous imprisonment for six months and pay fine of Rs. 500, in default of payment of fine to further undergo RI for one and a half months, on both counts. Facts of the case in brief are that on 17.7.1996 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 14 years at the relevant time belonging to scheduled tribe community, alleging that on 16.7.1996 when she alongwith Bharat Parhin (PW-3) and Ghutra Parhin (PW-4) was returning from the field, accused/appellant who was present near the pond, caught hold of her left hand, stopped her and in order to harass her he applied vermillion (sindur) on her face and forehead with bad intention and then he fled away from the spot. After reaching home, she informed the incident to her mother and as it was getting dark in the night, report could not be lodged on the same day. Based on this FIR, offences under Sections 354 IPC & 3 (1) (xi) of the special Act were registered against the accused/appellant and after completion of investigation, charge sheet was filed on 5.8.1996 for the offences under same sections. Court below also framed the charge under the said sections.

In support of its case, prosecution has examined 06 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that a very improbable story has been put forth by the prosecution because it is literally impossible for a boy to put vermilion openly that too when the prosecutrix was in the company of her two friends namely Bharat Parhin (PW-3) and Ghutra Parhin (PW-4). He submits that applying vermillion on the face and forehead of the prosecutrix would not constitute an offence u/s 354 IPC or 3(1) (xi) of the special Act because it cannot be said that by doing so the accused/appellant has outraged her modesty. He further submits that no assault or criminal force has been used by the accused/appellant and therefore he cannot be convicted for any offence. Counsel for the appellant further submits that caste certificate or any other document related to the caste of the prosecutrix has not been filed by the prosecution and on this count as well conviction of the accused/appellant u/s 3 (1) (xi) of the special Act is not justified. Lastly, he submits that if conviction of the accused/appellant u/s 354 IPC is not going to be disturbed, keeping in view the fact that at the time of incident he was aged about 19 years, that the incident had taken place about 16 years back and further that the jail sentence is not mandatory under the said section, he may not be sent behind the bars.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that act of the accused/appellant squarely fails within the ambit of Section 3 (1) (xi) of the special Act as while applying vermilion on the face and forehead of the prosecutrix he had used criminal force as defined u/s 350 IPC. Referring to the statement of the prosecutrix which has been duly supported by Bharat Parhin (PW-3) and Ghutra Parhin (PW-4), counsel for the respondent/State further submits that on account of the act of the accused/appellant prosecutrix felt bad. State counsel further submits that though no document has been filed by the prosecution in relation to caste of the prosecutrix yet in his statement recorded u/s 313 of the Code of Criminal Procedure, the accused/appellant has admitted her caste as Kanwar which falls in scheduled tribe category. In the same statement the accused/appellant has admitted his caste also as Panika, and therefore, non filing of any such document related to her caste would not be fatal for the case of the prosecution.

Prosecutrix (PW-1) has stated in her evidence that she belongs to Kanwar Adivasi caste whereas caste of the accused/appellant is Panika. According to her, on the date of incident when she was returning from the field alongwith Bharat Parhin (PW-3) and Ghutra Parhin (PW-4), near the pond accused/appellant was present carrying vermillion with him. He came to her and after applying vermillion to her he left the spot. Vermillion applied to her was then washed off by Ghutra Parhin (PW-4); after reaching home she narrated the incident to her parents and thereafter the report was lodged. This witness has further stated that on account of vermilion applied to her she felt bad. In cross examination, she has stated that though the accused/appellant was on intimate terms with her father and used to visit her house, she was not having any friendly relations with him. According to her, near the place of incident, number of persons were roaming. Anand Ram (PW-2)-father of the prosecutrix has stated that he knew the accused/appellant and that on the date of incident after returning from the field, prosecutrix started weeping and informed him about the fact that accused/appellant had applied vermilion on her face, and then the report was lodged. Bharat Parhin (PW-3) has stated that accused/appellant belongs to Panika caste and the prosecutrix belongs to scheduled tribe community. According to her, on the date of incident at about 5 p.m. when she along with the prosecutrix was returning from the field, accused/appellant who was standing near the pond, forcibly applied vermilion on the forehead of the prosecutrix as a result of which she (prosecutrix) started weeping and scolded him. Thereafter, according to this witness, the accused/appellant left the spot. Ghutra Parhin (PW-4) has made almost similar statement as made by Bharat Parhin (PW-3). According to this witness, applying vermilion means making someone a wife forcibly. R.N. Singh (PW-5) is the witness who recorded FIR and transferred the same to Harijan Thana. He has duly supported the case of the prosecution. K.R. Kamre (PW-6) is the investigating officer who has duly supported the case of the prosecution.

Minute examination of the evidence makes it clear that on the date of incident when the prosecutrix was returning from the field along with her friends (PW-3 & PW-4), accused/appellant caught hold of her and applied vermillion on her face and forehead as a result of which, she got stunned and fell bad. Evidence also goes to show that as a result of vermillion being applied by the accused/appellant she started weeping and on getting back home, narrated the entire incident to her mother. The evidence of the prosecutrix is duly supported by Anandram (PW-2), Bharat Parhin (PW-3) and Ghutra Parhin (PW-4).

To arrive at a particular decision in this case, it appears necessary to take note of the legal provision and the law expounded by the Apex Court which runs as under:-

Punishments for offences of atrocities.-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

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(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;

Criminal force.--Whoever intentionally uses force to any person, without that person''s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

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354 Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Dealing with a case involving almost the facts of similarity, it has been held by the Apex Court in the matter of Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, as under:-

Since the word ''modesty'' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word ''modest'' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster''s Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.) the meaning of the word ''modesty'' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion or coarse suggestions".

In State of Punjab v. Major Singh a question arose whether a female child of seven and a half months could be said to be possessed of ''modesty'' which could be outraged. In answering the above question Mudholkar, J, who along with Bachawat, J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the "common notions of mankind" referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J.) observed that the essence of a woman''s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ''modesty'' and the interpretation given to that word by this Court in Major Singh case it appears to us that the ultimate test for Ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to ''outraging of her modesty" for it was not only an affront to the normal sense of feminine decency but also an affront to the dingy of the lady-"sexual overtones" or not, notwithstanding.

In the matter of Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand), it has been held by the Apex Court as under:-

So far as the offence u/s 354 IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence.

The essence of a woman''s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.

"Modesty" is given as, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct" (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.

The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare, would amount to outraging her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady.

The word "modesty" is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex.

In the matter of Raju Pandurang Mahale Vs. State of Maharashtra and Another, t has been held by the Apex Court as under:-

Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force on a woman to outrage her modesty. The essential ingredients of offence u/s 354 IPC are:

(a) That the assault must be on a woman.

(b) That the accused must have used criminal force on her.

(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.

What constitutes an outrage to female modesty is nowhere defined. The essence of a woman''s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its essence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word "modesty" is not defined in IPC, The Shorter Oxford Dictionary (3rd Edn.) defines the word "modesty" in relation to a woman as follows:

Decorous in manner and conduct; not forward or lewd; Shamefast; scrupulously chaste.

Modesty is defined as the quality of being modest; and in relation to a woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in R. v. James Lloyd: In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.

The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

Webster''s Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency: a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.), the meaning of the word "modesty" is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.

Having thus gone through the entire evidence available on record particularly that of the prosecutrix as well as the legal position adumbrated above, this Court is of the considered opinion that by catching hold of the prosecutrix and then applying vermillion on her face and forehead, the accused/appellant has outraged her modesty. This Court does not find any force in the argument of the counsel for the appellant that as the prosecution has not filed and proved the caste certificate or any other document showing caste of the prosecutrix, accused/appellant cannot be convicted u/s 3(1)(xi) of the Special Act because, in the statement recorded u/s 313 of the Code of Criminal Procedure, the accused/appellant has admitted caste of the prosecutrix as Kanwar (Adavasi). Not only this, he has also admitted his own caste as Panika. Thus, even if the prosecution has not filed any such document showing caste of the prosecutrix, in view of the categorical admission by the accused/appellant, he can be very much convicted u/s 3(1)(xi) of the Special Act. Consequently, the findings recorded by the Court below are in consonance with the evidence of the witnesses and therefore, no interference in the judgment impugned is called for. That being so, the appeal is devoid of substance and the same is liable to be dismissed. It is dismissed as such. Accused/appellant is reported to be on bail. His bail bonds stand cancelled and he is directed to be taken into custody forthwith and sent to prison to undergo remainder of the sentence imposed on him.